Respondents Brief — Lewis v. United States

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mUPreimia Court, Ud”

EILED i}

No. 78-1595 NOV 3 1979

, JR., CLERK

Iu the Supreme Court of the Ruited States

OCTOBER TERM, 1979

GEORGE CALVIN LEWIS, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ANDREW J. LEVANDER

Assistant to the Solicitor General

JEROME M. FEIT

JOEL M. GERSHOWITZ

Attorneys

Department of Justice

Washington, D.C. 20530

Opinion below .............. siaiepicicitalieleibaimaianaiiipesiat

J ee

Question presented .................-.-----+-

Constitutional and statutory provisions in-

DOU sscnicinteicsdipsatiarcpatatuliniaibs

StaNNRE | igen sccsciminniinncsvcaci

Summary of argument .................---------------

Argument : ie

I. Section 1202(a)(1) prohibits a felo

from possessing a firearm even if the

predicate felony is otherwise subject to

collateral attack .......

A. The language, legislative history,

and purpose of Section 1202(a) (1)

demonstrate that the alleged invalidity

of the prior conviction is not a defense

to a prosecution under that provision....

B. Examination of the complete struc-

ture of the federal gun laws demon-

strates that an invalid felony convic-

tion may serve as the predicate for

a prosecution under Section 1202

(a) (1) ~.........--.....

C. The doctrines of avoidance of con-

stitutional questions and lenity do

not justify rewriting the federal

I acini rciinadiniitaiitenesitntvainans

ti Ill

Argument—Continued Page Cases—Continued Page

1. Avoidance of constitutional ques- Burgett v. Texas, 389 U.S. 109 ...........-.- 7, 12, 45,

tions 35 46, 47, 48

‘ Carafas v. LaVallee, 391 U.S. 284 ............ 32

2. The principle of flenity oT | Carter v. Gallagher, 452 F.2d 315, cert.

II. Congress may constitutionally bar a denied, 406 U.S. 950 ......... “ra 44

convicted felon from possessing a fire- : | Cassity v. United States, 521 F. 2d 1320... 29

arm even if the prior conviction was Crowell v. Benson, 285 U.S. 22 36

obtained without the aid of counsel........ 39 Dameron v. United States, 488 F.2d 724.. 16, 31

DePugh v. United States, 393 F.2d 367,

A. Equal protection concepts do not

. . cert. denied, 393 U.S. 882 ...................... 26

econ iaotes a ae oa DeVeau v. Braisted, 363 U.S. 144 ......... 40, 42

victed felons regardless of the valid- ree e Pay oo 556 F.20 GAA, cert. AT

ity of their prior conviction ............ 39 Erlenbaugh v. United States, 409 U. S.

B. The Sixth Amendment does not bar ipo ie | 25

recognition of the fact of a prior Ford v. United States, 273 U.S. 593 -....... 17

uncounselled conviction as a basis Gerstein v. Pugh, 420 U.S. 108 ................ 44

for imposing a firearm disability...... 45 Gideon v. Wainwright, 372 U.S. 336 ........ 8, 45

— 52 Hawker v. New York, 170 U.S. 189 .......... 42

gens Huddleston v. United States, 415 U.S.

CITATIONS 814 17, 21, 28, 29, 37, 38

Bin : Hyland v. Fukuda, 580 F.2d 977 ............. 17, 22

: Johnson v. Zerbst, 304 U.S. 458 28

aap ee v. Texas, No. 77-5992 (Apr. ‘i Kentucky Whip & Collar Co. v. Illinois

Poona? 2, aye ay wage : Cent. R.R. Co., 299 U.S. 334 40

ere Fa Ue VY. Ue » 27 Kitchens v. Dept. of Treasury, 535 F.2d

Barker v. United States, 579 F.2d1219.. 16 “2 ANT TITS ga7Ct~™”

’ Kite 4 h, < Goel

Barrett v. United States, 423 U.S. 212.. 16, 28, Se eee, Pace > cs

34, 37, 38 Loper v. Beto, 405 U.S. 478........12, 18, 45, 48, 49

es v. Palmigiano, 425 USS. 308 ...... 51 Lucas v. United States, 325 F.2d 867...... 49

v. United States, 349 U.S. 81 .......... 37 Marshall v. United States, 414 U.S. 417... 39

— No. 77-1829 (May 14, os Mays v. Harris, 523 F.2d 1258 .................. 49

Blue Chip Stampe v. M Drug St McGinnis v. Royster, 410 U.S. 268 ............ | 40

421 U.S. 723 15

United States v. Bowdach, 561 F.2d 1160.. 47

United States v. Bramblett, 348 U.S. 503.. 38

, | Vv

Cases—Continued Page Cases—Continued Page

Murgia-Melendrez V. INS, 407 F.2d 207... 44 United States v. Burton, 475 F.2d 469,

NLRB v. Catholic Bishop of Chicago, No. cert. denied, 414 U.S. 885. -o..-..-0-------- 41

77-752 (Mar. 21, 1979) ------------nno------- 36 United States v. Cluck, 542 F.2d 728, cert.

National Railroad Passenger Corp. v. Na- denied, 429 U.S. 986 ..... , 49

tional Ass’n of Railroad Passengers, 414 United States v. Craven, 478 F.2d 1329,

US, 458: ne eaves i cert. denied, 414 U.S. 866 ...............- 40, 41-42

New York City Transit Authority v. United States v. Culbert, 485 U.S. 371... 16

Beazer, No. 77-1427 (Mar. 21, 1979).. 39 United States v. Edwards, 568 F.2d 68... 32

Pickelsimer v. Wainwright, 375 U.S.2.... 45 United States v. Graves, 554 F.2d 65....10, 16, 22,

Reiter v. Sonotone Corp., No. 78-690 (June 23. 27. 33. 34

11, 1979) .. ae United States v. Haley, 417 F.2d 625....... 49

Rewis v. United States, 401 U.S. 808 ..... 37 United States v. Haygood, 502 F.2d 166... 47

Richardson v. Ramirez, 418 U.S. 24 .......... 4¢ United States v. Liles, 482 F.2d 18........16, 22, 41

Sanford, Estate of v. Commissioner, 308 United States v. Lufman, 457 F.2d 165... 35

Be Be iinet. 25 United States v. Maggard, 573 F.2d 926.. 16, 33

Scarborough v. United States, 431 U.S. United States v. Mandujano, 425 U.S

RE SRR eter eo ka eo 18, 21, 24, 34, 37 Ta aT wR 43

Scott v. Illinois, No. 77-1177 (Mar. 5, United States v. Morris, 39 U. S. (14

I Sab dici ss daithcieotuisa deh tnliemssbben 12-13, 43 SG Gi ee, Se 38

Shapiro v. United States, 885 U.S. 1 ...... 36 United States v. Naftalin, No. 78-561

Simpson v. United States, 435 U.S. 6 ...... 20, 37 co) eee 16, 21, 28

Southonstorn Comatuntiy a v. Davis, ‘i United States v. O’Neal, 545 F.2d 85... 35

o. 78-711 (June 11, 1979) -............... United States v. Pricepaul, 54

Swain v. Pressley, 430 U.S. 372 2.0... 11, 36 es ee a eee =

Touche Ross & Co. v. Redington, No. 78- United States v. Public Utilities Comm’n,

309 (June 18, 1979) -.. ... 15, 24 345 U.S. 295 ... 22

United States v. Allen, 432 F.2d 939 ........ 49 United States v. Re 515 F.2

United States v. Allen, 556 F.2d 720 ......6, 29, 32 United a emai d 5AB ys ”

United States v. Andrino, 497 F.2d 1108, cert. denied, 434 U.S. 908... 29

cert. denied, 419 U.S. 1048 ae United States v. Samson, 533 F.2d 721,

United States v. Bass, 404 U.S. 336......18, 24, 37 cert. denied, 429 U.S, 845 ............ 16, 40, 41, 43

United States v. Batchelder, No. 78-776 United States v. Smith, 584 F.2d 74, cert.

(June 4, 1979) ............ 11, 13, 18, 25, 36, 37, 38 denied, 429 U.S. 1100 wer 49

United States v. Sullivan, 332 U.S. 689........ 36

United States v. Thoresen, 428 F.2d 654.. 42

VI Vir

Cases—Continued Page Constitutions, statutes and

United States v. Tucker, 404 U.S. 443..12, 45, 47 regulation—Continued Page

United States v. Vuitch, 402 U.S. 62 .-....... 36 18 U.S.C. 922(a) (6) ............ 6, 10, 30, 31, 48

United States v. Williams, 484 F.2d 428... 16 18 U.S.C. 922 (Db) (5) ceceececneeoecceeceene--- 29

United States v. Wiltberger, 18 U.S. (5 | ee ee 29

Wheat.) 76 38 3s ee) 31

United States Civil Service Comm’r v. 18 U.S.C. 922(d) (1) 2... enecceneonee 7, 10

Nat'l Ass’n of Letter Carriers, 413 U.S. Bova. 25, 28

548 36, 37 18 U.S.C. 922(g) (1) ... wannen-nPASSiM

United Steelworkers v. Weber, No. 78-432 18 U.S.C. 922(g) (2)-(8) -oeeneeneececeenoenne- 25

eT ene oe a 25, 28

Upshaw v. McNamara, 435 F.2d 1188...... 40 18 U.S.C. 922(h) (1) .. oa passim

Vance v. Bradley, No. 77-1254 (Feb. 22, | 18 U.S.C. 922(h) (2)-(3) nee eeeneeaene 25

1979) 39-40 18 U.S.C. 922(m) satbiamcadente 3 29

Walker v. City of Birmingham, 388 U.S. | a * 4 STR EE eee ee 28, 29

307 50 i kT anak eee eee 29

Weir v. State, 319 So.2d 80 ... 32 BO UL, OOo 31

Whitfield v. Ohio, 297 U.S. 481 -.............. 40 18 U.S.C. 924(e) ................... 20

; RN I ine 26

Constitutions, statutes and regulation: ee NN passim

United States Constitution: 18 USSG. App. 1201 ..................... 12, 16, 41

18 U.S.C. App. 1202 14, 16, 18

Fifth Amendment, Due Process 18 U.S.C. App. 1202(a) ......2, 9, 20, 22, 23,

SI tailors yceivnitinmtantinnniplinatinght 2, 15, 42 28, 50

Sixth Amendment — | 18 U.S.C. App. 1202(a) (1) ............ passim

Comprehensive Drug Abuse Prevention 18 U.S.C. App. 1202(a) (2) .......... 20, 22, 25

and Control Act of 1970, Section 411 | 18 U.S.C. App. 1202(a) (3) ............. 22

Omnibus Crime Control and Safe Street 18 U.S.C. App. 1202(a) (5) ............. 22, 25

Act of 1968, Pub. L. No. 90-351, 82 18 U.S.C. App. 1202(c) (2) _............ 14,17

Stat. 225-237, as modified by the Gun 6WUSC io. 1 3, 8,17

Control Act of 1968, Pub. L. No. 90-618, 18 U.S.C. App. 1208(1) .................. 17

82 Stat. 1213 14, 18, 24 18 U.S.C. App. 1203(2) ............ 5, 7, 8, 9, 14,

18 U.S.C. 921(a) (20) 14, 26 17, 33, 38, 50

18 U.S.C. 922 28

18 U.S.C. 922(a)-(c) 29

vit

Constitutions, statutes and

regulation—Continued Page

Organized Crime Control Act of 1970,

Pub. L. No. 91-452, 84 Stat. 949, 18

U.S.C. 841, et seq. _ 18, 26

18 U.S.C. 842(a) (2) -... 31

18 U.S.C. 842(d) ... 31

18 U.S.C. 842(i) 18, 26, 31

18 U.S.C. 844(a) 31

I oc ccitirnnerctennicepnene 26

18 U.S.C. 3575 (e) 8,18

Speedy Trial Act of 1974, 18 U.S.C. 3161

et seq. 35

8 U.S.C. 1252 (b) (2) 3 43-44

10 U.S.C. 1169 .......... 43

18 U.S.C. 1073 -.. a 44

18 U.S.C. 3146 ‘ 44

Ok ERE Rarer: sce a 16, 32

28 U.S.C. 2255 eee

Pm Cont. art. 6 $6 2 32

32 C.F.R. Part 70 43

Miscellaneous:

114 Cong. Rec. (1968) :

Bee Sicicisdelsnntitesiiidiie : 20, 41

P. 13868 SEEN, 9, 19, 20, 22

. ee cone 21

P. 13869 om ii 20

P. 14773 ..20, 21, 41

Pp. 14773-14774 a 21

P. 14774 18, 20

Pp. 16285-16296 _.. ae 21

P. 16286 .... 18, 20

P. 16293 20

Miscellaneous—Continued Page

EE ES 20

kee 12, 21, 22, 41

EE ichibidnbcnaininints ote 22

i IE evenininisicichens 20

H.R. Conf. Rep. No. 1956, 90th Cong., 2d

i an lidacrtempinmaniananeie’ 26, 38, 48

H.R. Rep. No. 1577, 90th Cong., 2d Sess.

PSs eens ..20-21, 26

Note, Prior Convictions And The Gun

_ Control Act of 1968, 76 Colum. L. Rev.

ie 50

S. Rep. No. 1097, 90th Cong., 2d Sess.

(1968) 20, 26

S. Rep. No. 1501, 90th Cong., 2d Sess.

I shia PN ccccinkctaaniscsinaccaseiccncspiicnenmces 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 78-1595

GEORGE CALVIN LEWIS, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRI1' OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (A. 138-27) is

reported at 591 F.2d 978.

JURISDICTION

The judgment of the court of appeals (A. 28) was

entered on January 24, 1979. A petition for rehear-

ing was denied on March 19, 1979 (A. 29). The

petition for a writ of certiorari was filed on April

18, 1979, and was granted on June 18, 1979 (A. 30).

The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

(1)

QUESTION PRESENTED

Whether a defendant who is a previously convicted

felon may challenge the constitutionality of his prior

conviction as a defense to a prosecution for unlaw-

fully possessing a firearm.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the United States

Constitution provides in relevant part:

No person shall * * * be deprived of life,

liberty, or property, without due process of law

* *

2. The Sixth Amendment to the United States

Constitution provides in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right * * * to have the assistance of

counsel for his defence.

3. 18 U.S.C. 925(c) provides in pertinent part:

A person who has been convicted of a crime

punishable by imprisonment for a term exceeding

one year (other than a crime involving the use

of a firearm or other weapon or a violation of

this chapter or of the National Firearms Act)

may make application to the Secretary for relief

from the disabilities imposed by Federal laws

with respect to the acquisition, receipt, transfer,

shipment, or possession of firearms and incurred

by reason of such conviction, and the Secretary

may grant such relief if it is established to his

satisfaction that the circumstances regarding the

AOE pc om eB

conviction, and the applicant’s record and reputa-

tion, are such that the applicant will not be

likely to act in a manner dangerous to public

safety and that the granting of the relief would

not be contrary to the public interest. * * *

4. 18 U.S.C. App. 1202(a) provides:

Any person who—

(1) has been convicted by a court of the

United States or of a State or any political

subdivision thereof of a felony, or

(2) has been discharged from the Armed

Forces under dishonorable conditions, or

(3) has been adjudged by a court of the

United States or of a State or any political

subdivision thereof of being mentally incom-

petent, or

(4) having been a citizen of the United

States has renounced his citizenship, or

(5) being an alien is illegally or unlaw-

fully in the United States,

and who receives, possesses or transports in com-

merce or affecting commerce, after the date of

enactment of this Act, any firearm shall be fined

not more than $10,000 or imprisoned for not

more than two years, or both.

5. 18 U.S.C. App. 1208 provides:

This title shall not apply to—

(1) any prisoner who by reason of duties

connected with law enforcement has ex-

pressly been entrusted with a firearm by

competent authority of the prison; and

(2) any person who has been pardoned

by the President of the United States or

the chief executive of a State and has ex-

pressly been authorized by the President or

such chief executive, as the case may be, to

receive, possess, or transport in commerce a

firearm.

STATEMENT

Following a bench trial in the United States Dis-

trict. Court for the Eastern District of Virginia, pe-

titioner, who had previously been convicted of a

felony, was convicted of unlawfully possessing a fire-

arm, in violation of 18 U.S.C. App. 1202(a) (1). Pe-

titioner was sentenced to a term of 18 months’ im-

prisonment. A divided panel of the court of appeals

affirmed (A. 13-27).

1. The undisputed evidence at trial showed that

on January 28, 1977, Henrico County (Virginia)

police officers were keeping surveillance over a sus-

pected illegal gambling casino. At approximately

9:30 p.m., the officers observed petitioner and an-

other male drive around the surveillance area in a

suspicious fashion. After parking the car, petitioner

and his companion stood beside the car drinking beer.

Petitioner then took a pistol out of the car, concealed

it in the waistband of his trousers, and began walk-

ing toward the gaming establishment. Because carry-

ing a concealed weapon is a crime in Virginia, the

officers stopped petitioner, removed a .32 caliber re-

volver from his waistband holster, and arrested him

(Gov’t Exh. 1; Tr. 5-8, 18-19, 25-26, 29-30, 35).

Petitioner stipulated to the fact that the firearm

in question had previously been shipped in interstate

commerce (Gov’t. Exh. 7; Tr. 36). In addition, the

re een

STRONY Br ea mae:

government introduced a certified copy of petitioner’s

1961 felony conviction in Florida state court for

breaking and entering with intent to commit a mis-

demeanor (Gov’t. Exh. 4; Tr. 21-24). That convic-

tion has never been overturned, and petitioner had

not obtained a pardon or permission from the Sec-

retary of the Treasury to possess firearms. See 18

U.S.C. App. 1203 (2) ; 18 U.S.C. 925(c).

Shortly before trial, petitioner’s counsel advised

the court that he had information that petitioner had

not been represented by counsel in his 1961 Florida

trial. He contended that a conviction for violation of

Section 1202(a)(1) could not be predicated on a

prior conviction obtained in violation of petitioner’s

Sixth Amendment rights (A. 2-9).' The district

court rejected this claim, ruling that the constitu-

tionality of the Florida conviction was immaterial

with regard to petitioner’s status as a previously

convicted felon for purposes of Section 1202(a) (1)

(A. 9). Accordingly, petitioner did not present any

evidence on whether in fact he had been convicted in

1961 without the aid of counsel.

2. On appeal, the court of appeals held that the

accused may not collaterally attack a prior convic-

tion as a defense to a prosecution under Section 1202

(a)(1). The court concluded that the language and

legislative history of Section 1202(a)(1) make clear

1 Petitioner’s counsel further suggested that the Florida

indictment under which petitioner had been tried was facially

defective and that although petitioner was a juvenile (17

years old) at that time, he had been tried as an adult (A..3-4).

that the statutory prohibition applies to all persons

who have been convicted of a felony regardless of

whether that conviction is subject to collateral attack

(A. 14-18).? The court also rejected petitioner’s con-

tention that use of petitioner’s prior uncounselled

conviction as the predicate for a Section 1202(a) (1)

prosecution would violate his Sixth Amendment right

to counsel. Quoting from its earlier opinion in United

States v. Allen, 556 F.2d 720, 723-724 (4th Cir.

1977) ,° the court observed (A. 18-19) :

Although Burgett [v. Texas, 389 U.S. 109

(1967) ; United States v.] Tucker, [404 U.S. 443

(1972) ;] and Loper [v. Beto, 405 U.S. 473

(1972),] established that a conviction in viola-

tion of the right to counsel is too unreliable to

show guilt or enhance punishment under a re-

cidivist statute, to form the basis for an increased

sentence, or to be used to impeach general credi-

bility, they do not say that a conviction in viola-

tion of Gideon [v. Wainwright, 372 U.S. 335

(1963)] is absolutely meaningless. The reli-

ability of an indictment as an indication of prob-

able cause to believe that a certain person has

committed a crime does not depend en the pres-

ence of defense counsel * * *. Nor does the

2 The court suggested that an exception might be appropri-

ate where the conviction was facially invalid (A. 15).

8 Although Allen involved a prosecution under 18 U.S.C.

922(a) (6) for making a false statement to a dealer in con-

nection with the acquisition of a firearm, the court in the

present case stated that “the quoted reasoning is equally

applicable to either type of prosecution and has been gen-

erally so construed” (A. 17 n.7).

absence of defense counsel or the lack of a

waiver of the assistance of counsel render a

prior felony conviction invalid or unreliable as

an indication that the public interest requires

that the convicted person’s access to firearms be

restricted when the conviction has not been re-

versed or vacated and the defendant remains

unpardoned. We think that Congress is entitled

to rely on a prior standing conviction as proof

that there is probable cause to believe the con-

victed person has been involved in criminal ac-

tivity and should not be able to buy a gun with-

out first showing that he is no threat to public

safety, even though the conviction may have been

obtained in violation of Gideon.

Judge Winter dissented (A. 21-27). In his view,

Burgett v. Texas, 389 U.S. 109 (1967), and its progeny

bar the government from relying on petitioner’s prior

unconstitutional conviction as the basis for any prose-

cution (A. 23-24). Accordingly, Judge Winter con-

cluded that Section 1202(a)(1) should be construed

to permit collateral attacks based on the deprivation

of the right to counsel in order to avoid rendering

the statute unconstitutional (A. 21-23).

SUMMARY OF ARGUMENT

The federal gun laws broadly prohibit persons

who have been convicted of felonies from obtaining

firearms. See 18 U.S.C. App. 1202(a) (1); 18 U.S.C.

922(d) (1), 922(g)(1), and 922(h)(1). Petitioner

was convicted in Florida state courts of a felony

in 1961. That conviction has never been overturned,

and petitioner has never obtained a pardon (see 18

U.S.C. App. 1203 (2) ) nor received permission from the

Secretary of the Treasury to possess a firearm (see

18 U.S.C. 925(c)). Petitioner nonetheless argues that

his possession of a firearm in 1977 was lawful if his

prior conviction was invalid under this Court’s de-

cision in Gideon v. Wainwright, 372 U.S. 335 (1968).

The courts below, however, correctly concluded that the

alleged invalidity of a prior conviction is not a de-

fense to a prosecution under Section 1202(a) (1),

either as a matter of statutory construction or con-

stitutional compulsion.

Section 1202(a)(1) unequivocally provides that

“[a]ny person who * * * has been convicted * * *

of a felony * * * [may not] receive[], possess[], or

transport[] * * * any firearm * * *.” No exception

for persons whose outstanding convictions are alleg-

edly invalid appears either in the sweeping language

of the statute or in the express enumeration of ex-

ceptions contained in Section 1203. That omission

is particularly indicative of congressional intent, since

Congress has elsewhere specifically provided that the

defendant may challenge the validity of his prior con-

viction in the course of a subsequent criminal case,

when it has thought it appropriate to allow such a

defense. See 18 U.S.C. 3575(e) ; 21 U.S.C. 851(c) (2).

Accordingly, as nearly every court of appeals has

recognized, Section 1202(a)(1) imposes a firearm

disability upon the fact of conviction regardless

of its validity. Thus, a convicted felon who wishes

to possess a firearm lawfully must first have his con-

on eee mee ee

viction overturned (or otherwise obtain relief in ac-

cordance with the statute); he cannot simply ignore

the fact of his conviction as petitioner did.

The legislative history and the purpose of Section

1202(a) (1) show that an allegedly invalid conviction

may serve as the predicate for a prosecution under

that provision. Senator Long, who introduced and

sponsored Section 1202(a)(1) as a last minute floor

amendment to the Omnibus Crime Control and Safe

Streets Act of 1968, repeatedly emphasized the sweep-

ing nature of his provision and stated that his bill

would ensure that “the fact that anybody * * * has

been convicted of a felony” would result in a fire-

arm disability. 114 Cong. Rec. 13868 (1968). In

addition, the legislative history as a whole demon-

strates a strong congressional intent to stop the flow

of firearms to any person with a criminal record or

other objective characteristic that might indicate a

propensity to misuse firearms. That purpose would

be defeated if Section 1202(a) is construed to permit

otherwise disabled persons to attack the validity of

their disabling characteristic (such as a conviction,

dishonorable discharge, or commitment to a mental

institution) after such persons have obtained a fire-

arm rather than before, as contemplated by Congress.

See 18 U.S.C. 925(c); 18 U.S.C. App. 1203(2).

That Section 1202(a)(1) applies to all felons re-

gardless of the validity of their prior conviction is

further evidenced by the structure of the entire Omni-

bus Act. Like Section 1202 (a) (1), Sections 922 (g) (1)

and 922(h) (1) impose a firearm disability on all con-

victed felons. In addition, those provisions also pro-

hibit any person from receiving or transporting a

firearm while under indictment for a felony, even if

that person is subsequently acquitted or the indict-

ment is dismissed. It is thus readily apparent that

Congress could not have “intended to impose no dis-

ability on persons with outstanding convictions that

they assert are unconstitutional, but to impose a dis-

ability on persons under indictment,” particularly

since in most instances a person whose conviction is

overturned would still be under indictment. United

States v. Graves, 554 F.2d 65, 72 (3d Cir. 1977) (en

banc). Thus, the construction for which petitioner

contends would produce an irrational result at war

with the basic objectives of the Act.

Moreover, petitioner’s construction of Section

1202(a) (1) would substantially undermine the effec-

_tiveness and purpose of various other regulatory provi-

sions in the Omnibus Act. For example, the logic

of petitioner’s position suggests that a felon who be-

lieved his conviction to be invalid could lawfully lie

about the fact of his conviction to a firearm dealer in

connection with the acquisition of a firearm—clearly

not a result intended by Congress. See 18 U.S.C.

922(a) (6), 922(d)(1). Furthermore, permitting a

defendant to attack his prior conviction collaterally

as a defense to a federal firearm prosecution would

tend to encourage circumvention of the administrative

preclearance scheme established by Congress in Sec-

tion 925(c).

In sum, the language, legislative history, and struc-

ture of the Omnibus Act unambiguously demonstrate

that an allegedly invalid prior conviction may be

used as the basis for a firearm prosecution. Accord-

ingly, there is no “fairly possible” construction of Sec-

tion 1202(a)(1) that avoids the constitutional ques-

tion raised by petitioner. See, e.g., Swain v. Pressley,

430 U.S. 372, 378 n.11 (1977). Similarly, in the

absence of any grievous ambiguity in the statutory

language, there is no occasion to apply the rule of

lenity. See, e.g., United States v. Batchelder, No.

78-776 (June 4, 1979), slip op. 7.

The court of appeals also correctly rejected peti-

tioner’s constitutional challenge to his conviction. We

note at the outset that although this is a criminal

case, what is really at issue here is the constitutional

power of Congress to impose a civil firearms disability

as a consequence of any felony conviction, even if the

defendant has been denied the right to representation

by counsel at his felony trial. Criminal consequences

attach only when the defendant has eschewed the vari-

ous legal remedies available to remove the disability

and has flouted the statutory prohibition. If the civil

disability is valid, then it cannot reasonably be main-

tained that Congress may not employ criminal sanc-

tions to punish disobedience thereof.

The firearm regulatory scheme at issue here un-

questionably bears a rational relationship to the legi-

timate governmental interest in public safety.. The

express findings in Section 1201 and the legislative

history reflect Congress’ awareness of the substan-

tial nexus between the rise in violent crime and the

easy availability of guns to “criminals or other per-

sons who have specific records or characteristics which

raise serious doubt as to their probable use of firearms

in a lawful manner.” 114 Cong. Rec. 16298 (1968)

(remarks of Rep. Pollock). Thus, just as Congress

constitutionally imposed a firearm disability upon the

fact of indictment, dishonorable discharge, or commit-

ment to an institution, so too Congress could impose

a disability on the fact of conviction. Certainly, an

uncounselled conviction is no less reliable an indi-

cator of a person’s potential danger to society than

an indictment, and the availability of judicial relief

from the conviction or administrative relief pursuant

to Section 925(c) eliminates the possibility of un-

fairness in particular cases.

Nothing in the Sixth Amendment bars use of an

uncounselled conviction as the predicate for imposition

of a firearm disability, enforcible by criminal pen-

alties. To be sure, an uncounselled felony conviction

may not be reliably used to enhance a subsequent

sentence (see Burgett v. Texas, 389 U.S. 109 (1967) ;

United States v. Tucker, 404 U.S. 443 (1972)) or to

impeach a defendant’s credibility (see Loper v. Beto,

405 U.S. 473 (1972)). But the reliability of the

individual conviction is irrelevant to a Section

1202(a) (1) prosecution, and the Court has refused to

hold that an uncounselled conviction is invalid for all

purposes. See, ¢.g., Scott v. Illinois, No. 77-1177

a ee ee —

(Mar. 5, 1979). To the contrary, the Court has

clearly indicated that a convicted felon may not

simply ignore or lie about the fact of his prior convic-

tion—precisely what petitioner is attempting to do

here. See Loper v. Beto, supra, 405 U.S. at 482 n.11.

Moreover, in Burgett and its progeny the prior con-

viction did not become relevant until the time of the

second trial. Accordingly, the Court allowed the

defendant to challenge the validity of his conviction

at that time. The Burgett line of cases is thus not

controlling here, since the federal firearms laws im-

pose a disability immediately upon the event of convic-

tion. Accordingly, the court of appeals properly con-

cluded that a felon who wants to possess a firearm

lawfully must challenge the validity of his conviction

or obtain a pardon or administrative relief prior

to acquiring the firearm.

ARGUMENT

The federal gun laws prohibit persons who have

previously been convicted of a felony from receiving,

possessing or transporting firearms. See 18 U.S.C.

922(g)(1), 922(h)(1), and App. 1202(a)(1);

United States v. Batchelder, No. 78-776 (June 4,

1979), slip op. 3.5. This case presents the question

whether a defendant may challenge the validity of

his prior felony conviction as a defense to a prosecu-

tion for unlawfully possessing a firearm in violation

of Section 1202(a) (1).*

* There appears to be no significant difference among Sec-

tions 922(g) (1), 922(h) (1), and 1203(a) (1) with regard to

As we demonstrate below, the language, legislative

history, and purpose of Section 1202(a)(1) compel

the conclusion that Congress intended to keep fire-

arms out of the hands of every person who has been

convicted of a felony regardless of the validity of

that conviction, until such time as the felon either

successfully overturns his conviction, obtains a quali-

fying pardon, or receives administrative relief from

the Secretary of the Treasury (see 18 U.S.C. 925

(c); App. 1203(2)). Petitioner pursued none of these

remedies 27:4 cafinot now collaterally attack his prior

felony conviction.

Furthermore, application of Section 1202(a) (1)

to persons whose prior convictions were allegedly ob-

tained without the aid of an attorney does not vio-

late the Constitution. As petitioner apparently con-

cedes, Congress’ decision to impose a firearm dis-

the issue posed by this case. These provisions were simul-

taneously enacted by Congress in separate titles of the

Omnibus Crime Control and Safe Streets Act of 1968, Pub.

L. No. 90-351, 82 Stat. 225-235, 236-237, as modified by the

Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213-

1226, 1236. Section 1202(a) (1) differs substantially in scope

from Sections 922(g) (1) and (h)(1) (see United States v.

Batchelder, supra, slip op. 3-6 & n.7), but the pertinent

language of the three provisions is virtually identical insofar

as each section imposes a firearm disability on any indi-

vidual who has been convicted of a crime punishable by

imprisonment for a term exceeding one year. See 18 U.S.C.

921 (a) (20), 922(g) (1), 922(h) (1), App. 1202(a)(1) and

App. 1202(c) (2). (Section 921(a) (20) exempts antitrust

violators and the like, whereas Section 1202 does not). Ac-

cordingly the decision of the Court in this case will likely

resolve the issue presented here for purposes of all three

statutes.

ability on all felons without regard to the constitu-

tionality of the predicate conviction constitutes a ra-

tional classification that does not violate the Fifth

Amendment. Moreover, the Sixth Amendment right

to counsel does not bar recognition of the fact of an

uncounselled conviction in this context.

I. SECTION 1202(a)(1) PROHIBITS A FELON FROM

POSSESSING A FIREARM EVEN IF THE PREDI-

CATE FELONY IS OTHERWISE SUBJECT TO

COLLATERAL ATTACK

A. The Language, Legislative History, And Purpose

Of Section 1202(a)(1) Demonstrate That The

Alleged Invalidity Of The Prior Conviction Is Not

A Defense To A Prosecution Under That Provision

1. As this Court has repeatedly observed, the

“starting point in every case involving the construc-

tion of a statute is the language itself.” Southeast-

ern Community College v. Davis, No. 78-711 (June

11, 1979), slip op. 6 (quoting Blue Chip Stamps v.

Manor Drug Stores, 421 U.S. 723, 756 (1975)

(Powell, J., concurring) ); see, ¢.g., Touche Ross &

Co. v. Redington, No. 78-309 (June 18, 1979), slip

op. 7; Reiter v. Sonotone Corp., No. 78-690 (June 11,

1979), slip op. 3-4. Section 1202(a)(1) unambigu-

ously declares that “[a]ny person who * * * has

been convicted by a court of the United States or

of a State * * * of a felony * * *” may not receive,

possess, or transport a firearm that has traveled in

or affected commerce. Since no modifier restricts

the scope of the term “convicted,” “[n]Jothing on

the face of the statute suggests a congressional intent

to limit its coverage to persons [whose convictions

are not subject to collateral attack].” See United

States v. Culbert, 435 U.S. 371, 373 (1978) ; see also

United States v. Naftalin, No. 78-561 (May 21,

1979), slip op. 3.° Rather, as the courts of appeals

have almost uniformly recognized, the plain meaning

of this sweeping statutory language is that the fact

of conviction imposes a firearm disability on all

felons until such time as their convictions are over-

turned or they are relieved of the disability by other

affirmative action (A. 14-17). See, e.g., Barker v.

United States, 579 F.2d 1219, 1226 (10th Cir.

1978) (construing Section 922(h)(1)); United

States v. Maggard, 573 F.2d 926, 928 (6th Cir.

1978) ; United States v. Graves, 554 F.2d 65, 69 (3d

Cir. 1977) (en banc); United States v. Samson, 533

F.2d 721, 722 (1st Cir.), cert. denied, 429 U.S. 845

(1976); United States v. Williams, 484 F.2d 428

(8th Cir. 1973) ; United States v. Liles, 432 F.2d 18,

20-21 (9th Cir. 1970). See also Barrett v. United

States, 423 U.S. 212, 218 (1976). But see Dameron v.

United States, 488 F.2d 724, 727 (5th Cir. 1974).°

° The thrust of petitioner’s argument in this Court is only

that uncounselled convictions may not serve as the predicate

felony conviction under Section 1202(a)(1). In the dis-

trict court, however, petitioner attempted to impeach his prior

conviction on various grounds. See note 2, supra. As a matter

of statutory language, if Section 1202 permits collateral

attacks on the predicate felony on the ground of lack of

counsel, it would permit such attack on any other ground

that would support relief under 28 U.S.C. 2254 or 2255.

* Section 1201, which contains Congress’ express findings

and declarations on the problem of firearm abuse by “felons”

Moreover, the express enumeration of exceptions to

Section 1202(a)(1) found in Section 1203 refutes

the proposition that the alleged invalidity of the

predicate felony conviction is a defense to a Section

1202(a)(1) prosecution. Section 1203 exempts cer-

tain limited categories of “convicted” felons from

the broad coverage of Section 1202(a) (1), including

persons who have received a qualifying pardon. 18

U.S.C. App. 1203(2).7. No exception is made, how-

ever, for persons whose outstanding convictions are

for any reason invalid. In accordance with the an-

cient maxim of expressio wnius est. exclusio alterius,

judicial creation of another exception is therefore

unwarranted. See, e.g., Huddleston v. United States,

415 U.S. 814, 822 (1974); National Railroad Pas-

senger Corp. v. National Ass’n of Railroad Pas-

sengers, 414 U.S. 458, 458 (1974); Ford v. United

States, 273 U.S. 598, 611 (1927); Hyland v. Fukuda,

580 F.2d 977, 980 (9th Cir. 1978). In our view,

this particular omission is especially indicative of

congressional intent, since other federal statutes in-

volving prior convictions explicitly permit the ac-

cused to challenge the validity or constitutionality of

the predicate felony as a defense. See Section 411

and other irresponsible persons, also reflects an expansive

legislative approach. .

7 The pardon must specify that the felon may possess fire-

arms. Section 1208 also immunizes prison inmates who have

been authorized to carry a gun by a prison official. 18 U.S.C.

App. 1203 (1). In addition, Congress precisely defined “felony”

to exclude certain state crimes punishable by no more than

two years imprisonment. 18 U.S.C. App. 1202(c) (2).

and Control Act of 1970, 21 U.S.C. 851(c)(2) (re-

cidivist statute) ; 18 U.S.C. 3575(e) (special danger-

ous offender statute) .*

2. Section 1202 was enacted as part of Title VII

of the Omnibus Crime Control and Safe Streets Act

of 1968, Pub. L. No. 90-351, 82 Stat. 236-237 (“Om-

nibus Act’’).° Because Title VII was added as a last-

minute floor amendment to the Omnibus Act, it is

not discussed in the legislative reports. See United

States v. Batchelder, supra, slip op. 5; Scarborough

v. United States, 431 U.S. 563, 569-570 & n.9 (1977) ;

United States v. Bass, 404 U.S. 336, 344 & n.11

(1971). Nothing in the legislative debates regarding

Title VII even faintly suggests, however, that Con-

gress intended to permit a felon accused of violating

Section 1202(a)(1) to raise the alleged invalidity

of his prior conviction as a defense. (The extensive

legislative history accompanying Sections 922(g) (1)

and 922(h)(1) is similarly bereft of any support

818 U.S.C. 3575(e) was enacted as part of Title X of the

Organized Crime Control Act of 1970, Pub. L. No. 91-452, 82

Stat. 949. Title XI of that same statute concerns explosives.

Like Sections 922(g) (1) and 922(h) (1) from which it is de-

rived, Title XI unambiguously prohibits any person under

indictment for or convicted of a felony to ship or transport

an explosive. See 84 Stat. 955, 18 U.S.C. 842(i).

® Title VII was meant to “complement” and “add to” the

more comprehensive gun legislation contained in Title IV of

the Omnibus Act. 114 Cong. Rec. 14774, 16286 (1968); see

United States v. Batchelder, supra, slip op. 5-6; Scarborough

v. United States, 431 U.S. 563, 573 (1977). See pages 24-32,

infra.

for petitioner’s position.) To the contrary, what-

ever relevant legislative history there is reflects a

congressional intent to impose a firearm disability on

all felons based on the fact of conviction.

For example, Senator Long, who introduced and

managed passage of Title VII, observed that under

his bill “the fact that anybody * * * has been con-

victed of a felony” would thereafter preclude that

person from possessing a firearm. 114 Cong. Rec.

13868 (1968). As Senator Long further explained

on several occasions:

When a man has been convicted of a felony,

unless—as this bill sets forth—he has been ex-

pressly pardoned by the President and the par-

don states that the person is to be permitted

to possess firearms in the future, that man

would have no right to possess firearms. He

would be punished criminally if he is found in

possession of them.

* * * * *

What [Title VII] seeks to do is to make it

unlawful for a firearm * * * to be in the pos-

session of a convicted felon who has not been

pardoned and who has therefore lost his right to

possess firearms. * * *

* * * * *

So, under Title VII, every citizen could pos-

sess a gun until the commission of his first fel-

ony. Upon his conviction, however, Title VII

would deny every assassin, murderer, thief and

burglar of the right to possess a firearm in the

future except where he has been pardoned by

the President or a State Governor and has been

expressly authorized by his pardon to possess

a firearm.

Id. at 138868, 14773. See also id. at 13869, 14774.

These remarks evince Congress’ understanding that

the incidence of conviction automatically and with-

out exception results in the forfeiture of the right

to possess firearms.”

We further note that petitioner’s cramped con-

struction of Section 1202(a)(1) seems squarely in-

consistent with the general thrust of the legislative

policy revealed by the history of Title VII. That

statute (as well as Title IV of the Omnibus Act)

was enacted in response to the precipitous rise in

political assassinations, riots and other violent crimes

involving guns that occurred in this country in the

1960’s. See, e.g., S. Rep. No. 1097, 90th Cong., 2d

Sess. 76-78 (1968); H.R. Rep. No. 1577, 90th Cong.,

10 Senator Long was, of course, the sponsor and floor man-

ager of the bill and his statements are entitled to particular

weight. See, e.g., Simpson v. United States, 435 U.S. 6, 18

(1978). Moreover, his broad view of the purpose and effect

of Section 1202(a) is reflected in the comments and questions

of other congressmen. See, e.g., 114 Cong. Rec. 14774 (1968)

(exchange of Sens. Long and McClelian) ; id. at 16286 (Rep.

Machen) ; id. at 16293 (Rep. Boland); id. at 16296 (Rep.

Randall) (noting that the provision might work a hardship

as to dishonorably discharged veterans (Section 1202 (a) (2) )

since they might have rehabilitated themselves but not yet

have obtained a pardon). See also id. at 21788 (Rep. Casey)

(observing that with regard to 18 U.S.C. 924(c) “the only

thing that would have to be proved [is] his conviction * * *

and that a gun was used that had been in interstate com-

merce”) ; id. at 18220 (remarks of Sen. Tydings) (“any per-

son who has‘a criminal record’’).

2d Sess. 7 (1968); S. Rep. No. 1501, 90th Cong., 2d

Sess. 22-23 (1968); 114 Cong. Rec. 13868-13869,

14773-14774, 16285-16296 (1968). Given this his-

torical context, it is not surprising that Congress

took an expansive approach to keeping firearms away

from “criminals or other persons who have specific

records or characteristics which raise serious doubt

as to their probable use of firearms in a lawful man-

ner.” Id. at 16298 (Rep. Pollock).* As this Court

concluded in Scarborough v. United States, supra,

431 U.S. at 572, “[t]he legislative history [of Title

VII] in its entirety, while brief, further supports

the view that Congress sought to rule broadly—to

keep guns out of the hands of those who have dem-

onstrated that ‘they may not be trusted to possess a

firearm without becoming a threat to society.’ ”’ Con-

comitantly, the legislative debates are completely de-

void of any suggestion that Congress intended to per-

mit the accused to raise belatedly the validity of

his prior conviction as a defense to possessing a gun

while still a “convicted” felon. In these circum-

stances, there is no basis for creating a loophole in

the broad statutory scheme enacted by Congress. See

United States v. Naftalin, supra, slip op. 8; Hud-

dleston v. United States, supra, 415 U.S. at 825.

3. In addition, limiting the application of Sec-

tion 1202(a)(1) to validly convicted felons would

11 Senator Long similarly observed that Title VII applies

to “persons who, by their actions, have demonstrated that

they are dangerous, or that they may become dangerous.”

114 Cong. Rec. 14773 (1968) (emphasis supplied).

“bring about an end completely at variance with the

purpose of the statute.” United States v. Public

Utilities Comm’n, 345 U.S. 295, 315 (1953); United

Steelworkers v. Weber, No. 78-432 (June 27, 1979),

slip op. 6. As evidenced by the language and legis-

lative history of Section 1202(a)(1) detailed above,

Congress sought to control the incidence of violent

crime by “maximiz[ing] the possibility of keeping

firearms out of the hands of [potentially irresponsi-

ble] persons.” 114 Cong. Rec. 21784 (1968) (re-

marks of Rep. Celler). See, e.g., id. at 16298; Hy-

land v. Fukuda, supra, 580 F.2d at 980; United

States v. Graves, supra, 554 F.2d at 74; United

States v. Liles, supra, 432 F.2d at 20. Congress not

only prohibited any person who has been convicted

of a felony from possessing a firearm, but it also

imposed a similar disability on any person who has

been dishonorably discharged from the army,” who

has been adjudged a mental incompetent,” who has

renounced his citizenship,“ or who is an unlawful

alien.”

Thus, Congress enacted Section 1202(a) as a

sweeping prophylaxis against misuse of firearms.

12 See 18 U.S.C. App. 1202 (a) (2).

13 See 18 U.S.C. App. 1202 (a) (3).

14 See 18 U.S.C. App. 1202(a) (4). In promoting Title VII,

Senator Long stated that Lee Harvey Oswald, President

Kennedy’s assassin, was both dishonorably discharged from

the army (Section 1202(a)(2)) and an expatriate (Section

1202 (a) (4)). See 114 Cong. Rec. 13868 (1968).

45 See 18 U.S.C. App. 1202 (a) (5).

See, e.g., United States v. Graves, supra, 554 F.2d at

70. That purpose would be substantially undermined

if, as petitioner contends, the various types of poten-

. tially dangerous people set forth in Section 1202(a) *°

could attack the validity of their disabling character-

istic after the fact of possessing, receiving or trans-

porting a firearm rather than before, as contem-

plated by Congress.’ The effectiveness of the expan-

sive regulatory scheme contained in Section 1202(a)

depends in large measure on the breadth and cer-

tainty of the categories of disabled persons. Peti-

tioner’s construction of Section 1202(a) (1), however,

would severely limit the prophylactic impact of Sec-

tion 1202(a) in two ways. First, a person whose con-

viction (or discharge, etc.) was in fact invalid for

any reason would not be prohibited from possessing

a firearm, even though Congress reasonably “believed

that a person with an outstanding felony conviction,

even one that has been attacked as unconstitutional,

may be somewhat more likely than the average citi-

zen to utilize a gun improperly.” United States v.

Graves, supra, 554 F.2d at 70. Further, permitting

a defendant to raise the validity of his disability at

the trial of the firearms violation would tend to en-

16 We are unable to discern any difference among the sub-

sections of Section 1202(a) with regard to the statutory

issue posed by this case. If petitioner is correct about the

interpretation of Section 1202(a) (1), it seemingly follows

that dishonorably discharged veterans and mental incompe-

tents could also collaterally challenge the discharge or com-

mitment as a defense to a prosecution under Section 1202 (a).

17 See pages 32-35, 44-45, infra.

courage convicted felons, who otherwise fall within the

plain terms of the statute, to bypass the legal rem-

edies available to remove the disability and to judge

for themselves whether their prior convictions are pos-

sibly invalid and, consequently, whether they may

possess a firearm.

B. Examination Of The Complete Structure Of The

Federal Gun Laws Demonstrates That An Invalid

Felony Conviction May Serve As The Predicate For

A Prosecution Under Section 1202(a)(1)

It is well settled that “courts should interpret a stat-

ute with an eye to the surrounding statutory land-

scape and an ear for harmonizing potentially dis-

cordant provisions * * *.” United States v. Bass,

supra, 404 U.S. at 344. See, e.g., Touche Ross & Co. v.

Redington, No. 78-309 (June 18, 1979), slip op. 11.

The language, legislative history, and purpose of Title

VII discussed above demonstrate that the invalidity of

a prior felony conviction is not a defense to a prose-

cution under Section 1202(a)(1). The structure of

Title IV of the Omnibus Act, which was enacted

simultaneously with Title VII,* reinforces that con-

clusion.”

18 See Pub. L. No. 90-351, 82 Stat. 225-235, 236-237.

19 To be sure, the Court has previously indicated that it is

not very meaningful to compare Title VII with Title IV in

considering the interstate commerce nexus requirements of

those statutes. See Scarborough v. United States, supra, 431

U.S. at 569. More recently, however, the Court has expressly

recognized that in other contexts a comparison of the two

titles may well illuminate the meaning and proper construc-

tion of these two overlapping gun control provisions. See

1. Like Title VII, Title IV prohibits various cate-

gories of presumptively dangerous persons from

transporting and receiving firearms. 18 U.S.C. 922(g)

and 922(h).” In particular Sections 922(g) (1)

and 922(h)(1) impose a firearm disability on “any

person * * * who is under indictment for, or who has

been convicted in any court of, a crime punishable

by imprisonment for a term exceeding one year.”

Thus, with regard to the statutory question at issue

here, there is no significant difference between Title

IV and Title VII. Both statutes seek to keep firearms

away from “any person * * * who has been corivicted

* * *” of a felony.” Accordingly, if petitioner’s con-

United States v. Batchelder, supra, slip op. 6 n.7. Application

of the rule of in pari materia is particularly appropriate in

this case, since the two titles were enacted together as com-

plementary provisions, serve the same general function, and

most important, contain virtually identical language with

regard to the issue contested here. See, e.g., Erlenbaugh v.

United States, 409 U.S. 239, 243-245 (1972); Estate of San-

ford v. Commissioner, 308 U.S. 89, 44 (1989).

2° Title VII also prohibits mere possession. While the

categories of disabled persons under the two statutes overlap,

there are substantial differences. For example, only Title IV

applies to “fugitive[s] from justice” and “addicts,” whereas

only Title VII covers dishonrable dischargees from the armed

services, expatriates, and illegal aliens. Compare 18 U.S.C.

922(g) (2)-(3) and 922(h)(2)-(8) with 18 U.S.C. App.

1202 (a) (2), 1202(a) (4), and 1202(a) (5). The differences

and similarities between the two statutes have been canvassed

in detail in the government’s brief in United States v. Batch-

elder, at 15-22 (No. 78-776, 1978 Term), a copy of which has

been sent to petiitoner.

21 The definition of felony in Title IV is somewhat different,

in reports not material here, from that contained in Title

VII. Title IV exempts antitrust violations and the like

struction of Section 1202(a)(1) is correct, presum-

ably an accused may also challenge the validity of his

prior conviction under Sections 922(g)(1) and

922 (h) (1).”

But it is immediately apparent that limiting the

scope of Sections 922(g)(1) and (h)(1) to validly

convicted felons is completely at odds with the statu-

tory scheme as a whole. Sections 922(g)(1) and

(h) (1) not only impose a disability on a convicted

felon but also on a person who is under indictment

for a felony, even if that person is subsequently ac-

quitted of the felony charge. See, e.g., United States

v. Pricepaul, 540 F.2d 417, 421 (9th Cir. 1976);

DePugh v. United States 393 F.2d 367 (8th Cir.),

cert. denied, 393 U.S. 832 (1968); H.R. Conf. Rep.

No. 1956, 90th Cong., 2d Sess. 30 (1968) ; S. Rep. No.

1097, 90th Cong., 2d Sess. 112 (1968) ; H.R. Rep. No.

1577, 90th Cong., 2d Sess. 11 (1968). See also 18

U.S.C. 925(b) (licensed gun dealer may continue to

deal in guns despite Sections 922(g)(1) and (h) (1)

“until any conviction pursuant to the indictment be-

comes final”); 18 U.S.C. 845 (b). Since Congress

made the fact of indictment a disabling circumstance,

(18 U.S.C. 921(a) (20)) and Title IV covers felonies in any

court (i.e., possibly foreign ones), whereas Title VII spe-

cifically applies to federal and state courts.

22 The Court’s construction of Section 1202(a) (1) will also

be dispositive of the proper application of Title XI of the

Organized Crime Control Act of 1970, 18 U.S.C. 841 et seq.,

which imposes a similar disability on convicted felons and

indictees with regard to explosive materials. See 18 U.S.C.

842 (i).

a fortiori the fact of conviction also deprives a per-

son of the right to handle firearms. As the en banc

Third Circuit concluded in United States v. Graves,

supra, 554 F.2d at 72, “[t]o argue * * * that Con-

gress intended to impose no disability on persons with

outstanding convictions that they assert are unconsti-

tutional, but to impose a disability on persons under

indictment, would be to charge the legislative framers

with a manifest inconsistency.”

For example, except in the unusual circumstance

that the defect in the conviction affects the validity

of the indictment,” a person who successfully chal-

lenges his prior conviction will still be under indict-

ment.** Holding that such a defendant may challenge

his prior invalid conviction as a defense to the fire-

arm prosecution would ascribe to Congress one of the

following irrational purposes: Either the unconsti-

tutionally convicted defendant is still guilty of vio-

lating Title IV because he is considered to have been

under indictment at the time he received or trans-

ported a firearm—in which case the defense is a

time-consuming illusion; or the defendant goes free

because he was neither under indictment nor validly

23 Thus, if a conviction is invalid because the indictment

was fatally defective or because prosecution was improper

on such grounds as double jeopardy or speedy trial, the

indictment will be dismissed.

24 Under federal practice and most state practices, includ-

ing Florida, the defendant can be rettfJed on the original

indictment where, for instance, he was not represented by

counsel.

convicted at the time in question—in which case per-

sons who have lost the presumption of innocence as

a result of an (invalid) conviction are rendered more

trustworthy than persons under indictment who by

definition are presumed innocent. Cf. Bell v. Wolfish,

No. 77-1829 (May 14, 1979), slip op. 11-15; John-

son v. Zerbst, 304 U.S. 458, 468 (1938) (conviction

“carries with it a presumption of regularity”) .*

2. Title IV constitutes a comprehensive gun con-

trol scheme that seeks “broadly to keep firearms

away from the persons Congress classified as poten-

tially irresponsible and dangerous.” Barrett v. United

States, supra, 423 U.S. at 218; see Huddleston v.

United States, supra, 415 U.S. at 824. At the core

of Title IV are various regulatory and licensing pro-

visions. See 18 U.S.C. 922, 928. As we now demon-

strate, petitioner’s interpretation of Sections 922(g),

922(h), and 1202(a) would substantially limit the

effectiveness of this regulatory scheme and thereby

25 Both invalidly convicted felons and indictees may ulti-

mately vindicate their innocence. But as between the two

groups, it is beyond dispute that the latter, who are pre-

sumed innocent, are certainly not more presumptively dan-

gerous than the former, who have been convicted, albeit

invalidly. Thus, Congress could not rationally have imposed

a disability on indictees until such time as they successfully

defend themselves but not have imposed a similar disability

on convicted felons until such time as they succeed in having

their conviction reversed. Cf. United States v. Naftalin,

supra, slip op. 5 (“There is, therefore, ‘no warrant for nar-

rowing alternative provisions which the legislature has

adopted with the purpose of affording added safeguards.’ ’’).

subvert the congressional purpose underlying Title

IV.

Each person engaged in the business of importing,

manufacturing, transporting, selling or otherwise

dealing with firearms must procure a federal license.

18 U.S.C. 928, 922(a)-922(c). Federal licensees are

obligated to keep detailed records of all their trans-

actions. See 18 U.S.C. 922(b) (5), 922(c), 922(m),

923(g). In particular, every person who wishes to

purchase a firearm from a dealer must fill out a

special form that mandates disclosure of various in-

formation including disabling characteristics, such as

a prior conviction or commitment to a mental institu-

tion. See, e.g., Huddleston v. United States, supra,

415 U.S. at 816; United States v. Allen, 556 F.2d 720

(4th Cir. 1977) ; United States.v. Ransom, 545 F.2d

481 (5th Cir.), cert. denied, 484 U.S. 908 (1977);

Cassity v. United States, 521 F.2d 1320 (6th’ Cir.

1975). It is a crime to make a false statement on

26 Question 8 of Treasury Department (Bureau of Alcohol,

Tobacco and Firearms) Form 4473 provides:

8. CERTIFICATION OF TRANSFEREE (Buyer)—

An untruthful answer may subject you to criminal

prosecution. Each question must be answered with a

“yes” or a “no” inserted in the box at the right of the

question.

a. Are you under indictment or information* in any

court for a crime punishable by imprisonment for

a term exceeding one year? * A formal accusation

these forms (18 U.S.C. 922(a)(6)), and dealers are

prohibited from transferring a firearm to anyone they

of a crime made by a prosecuting attorney, as

distinguished from an indictment presented by a

grand jury.

b. Have you been convicted in any court of a crime

punishable by imprisonment for a term exceeding

one year? (Note: The actual sentence given by

the judge does not matter—a yes answer is neces-

sary if the judge could have given a sentence of

more than one year. Also, a “yes” answer is re-

quired if a conviction has been discharged, set

aside, or dismissed pursuant to an expungement or

rehabilitation statute.)

c. Are you a fugitive from justice?

d. Are you an unlawful user of, or addicted to,

marijuana, or a depressant, stimulant, or narcotic

drug?

e. Have you ever been adjudicated mentally defective

or have you ever been committed to a mental

institution?

f. Have you been discharged from the Armed Forces

under dishonorable conditions?

e g Are you an alien illegally in the United States?

h. Are you a person who, having been a citizen of the

United States, has renounced his citizenship?

I hereby certify that the answers to the above are true

and correct. I understand that a person who answers any

of the above questions in the affirmative is prohibited by

Federal law from purchasing and/or possessing a fire-

arm. I also understand that the making of any false oral

or written statement or the exhibiting of any false or

misrepresented identification with respect to this trans-

action is a crime punishable as a felony.

TRANSFEREE’S (Buyer’s) SIGNATURE

DATE

Ae nosed

have reasonable cause to believe may not lawfully re-

ceive a firearm (18 U.S.C. 922(d) ).”

The effect of these simple prohibitions on the flow

of firearms would be severely circumscribed if the

Omnibus Act is construed to disable only those per-

sons whose status as a felon, mental defective, dis-

honorable discharge, fugitive from justice, etc., is not

subject to collateral attack. Thus, even a validly

convicted felon could relieve a dealer of criminal re-

sponsibility for selling a firearm to a felon by stating

that he believed his prior conviction to be unconstitu-

tional. And it is at least arguable that if Sections

1202(a)(1), 922(g)(1), and 922(h)(1) apply to

validly convicted felons only, then a convicted felon

may lie about the fact of his prior conviction without

fear of violating Section 922 (a) (6). Cf. United States

v. Pricepaul, supra, 540 F.2d at 420. But compare

Dameron v. United States, 488 F.2d 724 (5th Cir.

1974), with United States v. Ransom, supra.” In

2718 U.S.C. 924(a) imposes a maximum penalty of up to

five years’ imprisonment or a $5,000 fine, or both, for viola-

tion of Sections 922(a)(6) and 922(d). Title XI of the

Organized Crime Control Act of 1970 constitutes a virtually

identical statutory scheme designed to stem the flow of ex-

plosive materials to dangerous persons. See 18 U.S.C. 842

(a) (2) (false statement prohibition), 842(d) (dealer pro-

hibition), 842(i) (dangerous persons categorized). Title XI

provides a greater maximum penalty, however. See 18 U.S.C.

844(a) ($10,000 and 10 years’ imprisonment).

28The Ninth Circuit alone has concluded that Section

922 (a) (6) is not violated if a purchaser of a firearm fails to

disclose the fact of his prior uncounselled conviction. See

United States v. Pricepaul, supra. The court reached that

short, petitioner’s construction of the Act would

thwart Congress’ regulatory design.

3. If an invalidly convicted felon had no means

to establish his right to possess firearms other than

challenging his status in the course of the firearm

prosecution, then perhaps this Court might be jus-

tified in formulating such a defense despite the lan-

guage, legislative history, purpose and structure of

the gun control laws limned above. In fact, how-

ever, the Omnibus Act encompasses at least three

avenues of prospective relief from the disability im-

posed by Sections 1202(a) (1), 922(g)(1) and 922

(h)(1). Thus, prior to obtaining a firearm, peti-

tioner could have—and, in our view, should have—

challenged his prior conviction in a coram nobis pro-

ceeding in Florida state courts. See, e.g., Fla. Const.

art. 5, § 5; Weir v. State, 319 So. 2d 80 (Fla. 2d Dist.

Ct. App. 1975); L’Hommedieu v. State, 362 So.

2d 72 (Fla. 2d Dist. Ct. App. 1978). In addi-

result as a matter of constitutional law, however, and not a

construction of the Act. 540 F.2d at 420-421. Various other

courts of appeals have concluded that Section 922 (a) (6) pro-

hibits even an invalidly convicted felon from lying about the

fact of conviction. See, e.g., United States v. Graves, supra;

United States v. Allen, 556 F.2d 720 (4th Cir. 1977) ; United

States v. Ransom, supra; Cassity v. United States, supra;

United States v. Edwards, 568 F.2d 68 (8th Cir. 1977).

29In many circumstances federal habeas corpus relief will

be available under 28 U.S.C. 2254 and 2255. See Carafas v.

LaVallee, 391 U.S. 234 (1968). Had petitioner done so suc-

cessfully, he would, of course, still have been subject to pos-

sible trial and conviction on the charge.

tion to judicial relief, petitioner could also have

sought a pardon from the Florida executive in ac-

cordance with Section 1203(2).% Finally, Section

925(c) provides that any person who has been con-

victed of a felony (except one involving use of a

firearm) may apply to the Secretary of the Treasury

for relief from the firearm restrictions imposed by

the Omnibus Act.™

The existence of these remedies, two of which are

expressly contained in the Omnibus Act itself, strongly

suggests that Congress did not intend to permit the

invalidity defense urged on the Court by petitioner.

The. relief procedures contemplated by Congress re-

80 The pardon must specifically provide that the felon may

thereafter use firearms.

31 As evidenced by its reference to “possession” of firearms,

Section 925(c) applies to Section 1202(a) (1) as well as to

Sections 922(g) (1) and 922(h)(1). H.R. Conf. Rep. No.

1956, supra, at 38. See United States. v. Maggard, supra, 573

F.2d at 928 n.1; United States v. Graves, supra, 554 F.2d at 72.

The Secretary may “grant such relief if it is established to

his satisfaction that the circumstances regarding the convic-

tion, and the applicant’s record and reputation, are such

that the applicant will not be likely to act in a manner dan-

gerous to public safety and that the granting of the relief

would not be contrary to the public interest.” 18 U.S.C.

925(c). In 1978, 1,757 applications were filed and 574 were

granted. Among the common reasons for denying an appli-

cation are (1) the applicant is still on probation, (2) the

applicant is barred from possessing firearms under state

law, and (3) the applicant’s prior crime involved use of a

firearm. The Ninth Circuit has held that a rejected applicant

may seek judicial review of an adverse decision. See Kitchens

v. Dept. of Treasury, 585 F.2d 1197 (9th Cir. 1976) (arbitrary

and capricious standard of review). :

quire that the defendant clear his status before ob-

taining a firearm, thereby “broadly * * * keep[ing]

firearms away from the persons * * * classified as po-

tentially irresponsible and dangerous.” Barrett v.

United States, supra, 423 U.S. at 218; see also Scar-

borough v. United States, supra, 431 U.S. at 572.

Petitioner’s construction of the Act, on the other

hand, would encourage convicted felons who wished

to obtain firearms to guess whether or not their

prior conviction was invalid. As a result, the prospec-

tive remedial schemes provided by the Omnibus Act

will be bypassed and the bright line prohibition here-

tofore established by Sections 922(g)(1), 922(h)

(1), and 1202(a) (1) will be clouded.

Moreover, letting a defendant challenge the validity

of his prior conviction as a defense to a Section

1202(a) (1) prosecution will interfere with the admin-

istration of the gun control laws for still other rea-

sons. The federal courts will be burdened by time-

consuming collateral issues—issues that very often

would have been more easily and more accurately

resolved in state court, either because the essential

records are kept in state court or because the issue

of validity will involve questions of state procedural

and substantive law.* Furthermore, where, as here,

821If Section 1202(a)(1) is construed to apply only to

validly convicted felons, then presumably a convicted felon

does not violate Section 1202(a)(1) if his prior conviction

is subsequently overturned on direct appeal, even though he

possessed a firearm while a convicted felon. But see United

States v. Liles, supra. Such a construction would pose serious

problems of judicial administration with regard to defendants

the conviction is decades old, there may be no records

or only incomplete records regarding the predicate

conviction. Accordingly, the government might well

be unable to establish that the defendant was rep-

resented by counsel or waived the right to counsel

even though in fact he was or he did. In such cir-

cumstances, the federal court may have little choice

but to accept the uncontroverted allegation of the de-

fendant and to acquit him. See United States v.

O’Neal, 545 F.2d 85 (9th Cir. 1976); United States

v. Lufman, 457 F.2d 165, 166-167 n.2 (7th Cir.

1972). The obvious potential for abuse and the con-

comitant disruption in the enforcement of the Omni-

bus Act are apparent.

C. The Doctrines Of Avoidance Of Constitutional

Questions And Lenity Do Not Justify Rewriting

The Federal Gun Laws

1. Avoidance of constitutional questions. Because

in petitioner’s view the Sixth Amendment precludes

use of an uncounselled felony conviction in a firearm

prosecution (but see point IIA, infra), he contends

(Br. 4) that Section 1202(a)(1) “should be read to

avoid a construction that would render it unconstitu-

whose prior convictions are on direct appeal at the time of

the gun control prosecution. It would certainly be inappro-

priate for the trial court to prejudge the merits of the de-

fendant’s appeal. Thus, the district judge would either have

to stay the gun control prosecution (possibly violating the

Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq.) or to proceed

with a prosecution that may thereafter be rendered a nullity.

tional.” See also A. 22-28 (Winter, J., dissenting) .™

To be sure, a court should construe a truly ambiguous |

statute to avoid a serious constitutional question. See,

é.g.. NLRB v. Catholic Bishop of Chicago, No. 77-

752 (Mar. 21, 1979), slip op. 9-11; United States

Civil Service Comm’n v. Nat'l Ass’n of Letter Car-

riers, 413 U.S. 548, 571 (1973); United States v.

Vuitch, 402 U.S. 62, 70 (1971). But even assuming

that petitioner’s constitutional claims are substantial,

the maxim relied on by petitioner has no application

to this case.

“(Resort to an alternative construction to avoid

deciding a constitutional question is appropriate only

when such a course is ‘fairly possible’ or when the

statute provides a ‘fair alternative’ construction.”

Swain v. Pressley, 480 U.S. 372, 378 n.11 (1977);

see United States v. Batchelder, supra, slip op. 7-8;

Shapiro v. United States, 335 U.S. 1, 31 (1948);

United States v. Sullivan, 332 U.S. 689, 693 (1948) ;

Crowell v. Benson, 285 U.S. 22, 62 (1932). The lan-

guage and legislative history of Section 1202(a) (1)

outlined above demonstrate unequivocally that Con-

gress intended to keep firearms away from all

convicted felons, even if their convictions should sub-

sequently be adjudged invalid for any reason. Simi-

larly, the purpose and structure of the federal gun

83 Of coursé, petitioner’s construction of the statutory

language would allow any felon to attack the validity of his

prior conviction as a defense to a firearm prosecution, even

though the defect in the particular conviction did not raise

constitutional questions. See note 5, supra.

laws as a whole show that petitioner’s reconstruc-

tion of Section 1202(a) (1) is simply not “consistent

with the will of Congress.” United States Civil Serv-

we Comm’n v. Nat'l Ass’n of Letter Carriers, supra,

413 U.S. at 571. Accordingly, just as in United

States v. Batchelder, supra, slip op. 7, “the maxim

that statutes should be construed to avoid constitu-

tional questions offers [petitioner] no assistance

here.”

2. The principle of lenity. This Court has often

stated that “ambiguity concerning the ambit of crimi-

nal statutes should be resolved in favor of lenity.”

Rewis v. United States, 401 U.S. 808, 812 (1971).

See, e.g., Simpson v. United States, 435 U.S. 6, 14

(1978); United States v. Bass, supra, 404 U.S. at

347; Bell v. United States, 349 U.S. 81, 83 (1955).

“This rule of narrow construction is rooted in the

concern of the law for individual rights, and in the be-

lief that fair warning should be accorded as to what

conduct is criminal and punishable by deprivation

of liberty or property.” Huddleston v. United States,

supra, 415 U.S. at 831. It is equally well-established,

however, that the touchstone of the doctrine of lenity

is the existence of a “grievous ambiguity or uncer-

tainty in the language and structure of the [criminal

statute in question].” Ibid.; see, e.g., United States v.

Batchelder, supra, slip op. 7; Scarborough v. United

States, supra, 431 U.S. at 577; Barrett v. United

States, supra, 423 U.S. at 217-218. Nosuch ambiguity

exists here.

Section 1202(a)(1) gives unambiguous notice to

all convicted felons that they may not possess a fire-

arm. Cf. Huddleston v. United States, supra, 415

U.S. at 831; United States v. Batchelder, supra, slip

op. 7. Although the statute elsewhere makes excep-

tions for persons receiving a specific pardon (18

U.S.C. App. 1203(2)) and for persons obtaining pre-

clearance from the Secretary of the Treasury (18

U.S.C. 925(c) ), no exception appears for felons whose

outstanding prior convictions are subject to collateral

attack. In such circumstances, “there is no justifica-

tion for indulging in uneasy statutory construction.”

Barrett v. United States, supra, 423 U.S. at 217.

Moreover, the legislative history, statutory structure, .

and remedial purpose of the Act analyzed above

manifest an unequivocal congressional intent to keep

firearms from all persons who might be dangerous—

including felons who may have been unconstitutionally |

convicted. See pages 18-35, supra. There is thus no

occasion to apply the maxim of lenity, because

“Te]ven penal laws * * * ought not to be construed

so strictly as to defeat the obvious intention of the

legislature.” American Fur Co. v. United States, 27

U.S. (2 Pet.) 358, 367 (1829); see, e.g., United

States v. Batchelder, supra, slip op. 7; Huddleston v.

United States, supra, 415 U.S. at 831; United States

v. Bramblett, 348 U.S. 508, 509-510 (1955); United

States v. Morris, 39 U.S. (14 Pet.) 464, 475 (1840) ;

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,

95-96 (1820).

II. CONGRESS MAY CONSTITUTIONALLY BAR A

CONVICTED FELON FROM POSSESSING A FIRE-

ARM EVEN IF THE PRIOR CONVICTION WAS

OBTAINED WITHOUT THE AID OF COUNSEL

Our discussion in point I demonstrates that Con-

gress intended to impose a firearm disability on

persons with outstanding felony convictions, even if

those convictions might be subject to collateral attack.

We now turn to the question whether the firearm

statutes thus enacted by Congress violate the Con-

stitution. In our view, the critical question is whether

Congress may impose a civil disability regarding pos-

session of firearms on invalidly convicted felons. If,

as we submit, that question is answered affirmatively,

it then follows that Congress may attach criminal

liability to those who ignore this civil bar, even if

the prior conviction was obtained in violation of the

Sixth Amendment.

A. Equal Protection Concepts Do Not Preclude Con-

gress From Imposing Firearm Disabilities Upon

All Convicted Felons Regardless Of The Validity

Of Their Prior Conviction

It is beyond dispute “that the concept of equal

protection as embodied in the Due Process Clause

of the Fifth Amendment * * * does not require that

all persons be dealt with identically, but rather that

there be some ‘rational basis’ for the statutory dis-

tinctions made * * * or that they ‘have some relevance

to the purpose for which the classification is made.’ ”

Marshall v. United States, 414 U.S. 417, 422 (1974);

see, e.g., New York City Transit Authority v. Beazer,

No. 77-1427 (Mar. 21, 1979), slip op. 23 n.389; Vance

v. Bradley, No. 77-1254 (Feb. 22, 1979), slip op. 4;

McGinnis v. Royster, 410 U.S. 263, 270 (1973).

Thus, the firearm regulatory scheme at issue here

must be sustained as consonant with due process un-

less the classifications and procedures enacted by Con-

gress bear no rational relationships to a legitimate

governmental interest.* Section 1202(a)(1) readily

meets that test.

The express congressional purpose in enacting Title

VII is set forth in the statute itself:

[T]he receipt, possession, or transportation of a

firearm by felons * * * constitutes—(1) a bur-

den on commerce or threat affecting the free

flow of commerce, (2) a threat to the safety

of the President of the United States and Vice

President of the United States, (3) an impedi-

ment or a threat to the exercise of free speech

and the free exercise of a religion guaranteed

by the first amendment to the Constitution of

the United States, and (4) a threat to the con-

tinued and effective operation of the Govern-

ment of the United States and of the govern-

ment of each State guaranteed by article IV of

the Constitution.

% The “rational basis” test is applicable here because legis-

lative reliance upon convict status is certainly not a suspect

classification (see, e.g., DeVeau v. Braisted, 363 U.S. 144, 157

(1960) (opinion of Frankfurter, J.) ; McGinnis v. Royster,

supra) and the use of firearms does not trench upon any

fundamental interest (see, e.g., United States v. Samson,

supra, 533 F.2d at 722; United States v. Craven, 478 F.2d

1329, 1389 (6th Cir.), cert. denied, 414 U.S. 866 (1973)).

See also Kentucky Whip-& Collar Co. v. Illinois Cent. R.R.,

299 U.S. 334 (1937) ; Whitfield v.\Ohio, 297 U.S. 431 (1936) ;

Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970).

18 U.S.C. App. 1201. Similarly, the legislative his-

tory of the gun control laws “evidences Congress’

deep concern about the easy availability of firearms,

especially to those who Congress has reason to be-

lieve pose a greater threat to community peace than

does the public generally.” United States v. Liles,

supra, 432 F.2d at 20. See pages 19-22, supra. And

in particular, Congress focused on the substantial

nexus between violent crimes and the possession of fire-

arms by “any person who has a criminal record.” 114

Cong. Rec. 13220 (1968) (remarks of Sen. Tydings) ;

see, ¢.g., id. at 16298 (remarks of Rep. Pollock)

(“criminals or other persons who have specific records

or characteristics which raise serious doubt as to

their probable use of firearms in a lawful manner’’).*

In light of the overwhelming evidence that felons

as a group are more likely to use firearms unlaw-

fully than the public as a whole, Congress rationally

concluded that any felony conviction—even an alleg-

edly invalid one—is a sufficient basis on which to

prohibit the possession of firearms. See, e.g., United

States v. Samson, supra, 583 F.2d at 722; United

States v. Ransom, 515 F.2d 885, 891-892 (5th Cir.

1975); United States v. Andrino, 497 F.2d 1108,

1108 (9th Cir.), cert. denied, 419 U.S. 1048 (1974) ;

Unitec States v. Burton, 475 F.2d 469, 471 (8th

Cir.), cert. denied, 414 U.S. 835 (1973); United

85 Senator Long, the sponsor of Title VII, noted that, for

example, the assassins of Dr. Martin Luther King and civil

rights worker Viola Liuzzo had prior criminal records. See

114 Cong. Rec. 14773 (1968).

States v. Craven, 478 F.2d 1329, 1339 (6th Cir.),

cert. denied, 414 U.S. 866 (1973); United States v.

Thoresen, 428 F.2d 654, 658-662 (9th Cir. 1970).

Thus, even assuming that the fact of an uncoun-

selled or otherwise invalid conviction is an unreliable

indicator of a particular person’s propensity to mis-

use firearms, Section 1202(a)(1) is not unconstitu-

tional as applied to invalidly convicted felons. Over-

inclusive and imperfect legislative classifications do

not violate the Due Process Clause, so long as the

general classification bears some reasonable relation-

ship to the legislative goal. See, e.g., New York City

Transit Authority v. Beazer, supra; McGinnis v.

Royster, supra. And this Court has repeatedly rec-

ognized that a legislature may constitutionally pro-

hibit convicted felons from engaging in activities far

more fundamental than the right to possess firearms

at issue here. See Richardson v. Ramirez, 418 U.S.

24 (1974) (disenfranchisement of felons); DeVeau

v. Braisted, 363 U.S. 144, 157-160 (1960) (felons

barred from waterfront employment); Hawker v.

New York, 170 U.S. 189 (1898) (prohibition on med-

ical practice by a felon).

Even if one ignored the fact that Congress was

broadly distinguishing between the general popula-

tion and convicted felons and considered only the

subclass of unconstitutionality convicted persons, the

imposition of a civil firearms disability on the lat-

ter group remains justifiable. Congress could ration-

ally have concluded that persons who have been in-

validly convicted nonetheless pose a sufficient threat

to public safety to justify the slight civil disability

involved in this case. See, e.g., United States v.

Graves, supra, 554 F.2d at 69; United States v. Sam-

son, supra, 5383 F.2d at 723 (“the consequences of

the deprivation are relatively slight compared with the

gravity of the public interest sought to be pro-

tected’). Uncounselled convictions are, for example,

reliable enough to serve as the basis for imposing a

criminal fine—a more significant sanction than the

minor civil incapacity created by Section 1202(a)

(1). See Scott v. Illinois, No. 77-1177 (Mar. 5,

1979). Moreover, the fact of an uncounselled con-

viction, which represents the grand jury’s or magis-

trate’s finding of probable cause and the trier of

fact’s finding of guilt beyond a reasonable doubt, is

at least as reliable an indicator of antisocial ten-

dencies as the fact of indictment, commitment, dis-

honorable discharge, or deportability.*° And just as

36 Due process and the Sixth Amendment require that the

defendant be accorded various rights at trial and that his

guilt be established beyond a reasonable doubt. In contrast,

indictment requires only an ex parte finding of probable cause

by the grand jury; the defendant has no right to appear be-

fore the grand jury, and, if he does testify, he has no right

to counsel. United States v. Mandujano, 425 U.S. 564, 581

(1976) (plurality opinion). Similarly, the Court has recently

concluded that a civil commitment requires a lesser standard

of proof than that necessary to convict. See Addington v.

Texas, No. 77-5992 (Apr. 30, 1979). See also H.R. Conf. Rep.

No. 1956, supra, at 30 (definition of commitment includes

those committed by a commission or administrative tribunal).

Furthermore, there is no right to jury trial or counsel in a

dishonorable discharge proceeding (see 10 U.S.C. 1169; 32

C.F.R. Part 70) or in an immigration proceeding (8 U.S.C.

Congress may constitutionally impose substantial

limitations on the activities of indictees, including

arrest, incarceration and the restrictions attendant

thereto, and various civil disabilities,” a fortiori it

may constitutionally prohibit invalidly convicted

felons—who, even if their convictions were con-

sidered void, would still stand indicted—from obtain-

ing or possessing firearms.

Finally, we note that any doubts about the reason-

ableness of the felony classification contained in Sec-

tion 1202(a) (1) must be resolved favorably in light

of the existence of various remedies to remove the

disability. The conviction may be set aside on col-

lateral attack, the individual can be pardoned, and

Section 925(c) permits the Secretary of the Treasury

to make an individualized determination regarding

the prospective use of firearms by a convicted felon.

These civil remedies provide ample means of elimi-

nating possible unfairness in particular cases. Cf.

Carter v. Gallagher, 452 F.2d 315, 326 (8th Cir.

1971), cert. denied, 406 U.S. 950 (1972). In other

words, if petitioner’s uncounselled conviction had no

bearing on his fitness to possess firearms—an un-

realistic assumption given petitioner’s substantial rec-

1252(b) (2) ; Murgia-Melendrez v. INS, 407 F.2d 207, 208-

209 (9th Cir. 1969)).

87 See, e.g., Bell v. Wolfish, supra; Gerstein v. Pugh, 420

U.S. 108, 111-114 (1975); United States v. Craven, supra;

United States v. Thoresen, supra. See also 18 U.S.C. 3146

(release prior to trial) ; 18 U.S.C. 1078 (flight to avoid prose-

cution unlawful even if defendant is not guilty of underlying

crime).

ord of violence and firearm misuse—* he could have

and should have established his right to obtain a gun

despite his felony conviction in accordance with the

statutory scheme.

B. The Sixth Amendment Does Not Bar Recognition

Of The Fact Of A Prior Uncounselled Conviction

As A Basis For Imposing A Firearm Disability

Although petitioner does not contest that Congress

may constitutionally prohibit invalidly convicted felons

in general from possessing firearms, he nonetheless

contends that the Sixth Amendment bars the use of

uncounselled convictions in this context.* To be sure,

the Court has made clear that an outstanding un-

counselled felony conviction cannot reliably be used

for certain purposes. See Burgett v. Texas, 389 U.S.

109 (1967); United States v. Tucker, 404 U.S. 448

(1972) ; Loper v. Beto, 405 U.S. 473 (1972). But the

Court has never suggested that an uncounselled con-

viction is invalid for all purposes (see, e.g., Scott v.

Illinois, supra), and if we are correct in our general

88 Petitioner has been repeatedly convicted for assaults and

misuse of firearms, such as discharging a firearm in a public

place. All of these convictions were classified as misdemeanors.

Furthermore, in this case, petitioner was arrested as he

approached an illegal gambling casino for unlawfully con-

cealing a firearm. See page 4, supra.

39 We assume for the purposes of this discussion that peti-

tioner was convicted in 1961 without the aid of counsel. Such

a felony conviction is, of course, invalid. See Gideon v. Wain-

wright, 372 U.S. 385 (1968) ; Pickelsimer v. Wainwright, 375

U.S. 2 (1968) ; Kitchens v. Smith, 401 U.S. 847 (1971) (hold-

ing Gideon wholly retroactive).

submission that the invalidity of a conviction does not

ipso facto nullify the firearms possession disability of

Section 1202(a) (1), that conclusion is as valid where

the defect in the conviction is lack of counsel as it is

with any other defect.

1. In Burgett v. Texas, the defendant was indicted

for assault with intent to kill and also as a repeat

felony offender under a state recidivist statute. 389

U.S. at 111. The indictment, including its reference

to the defendant’s four prior felony convictions, was

read to the jury at the beginning of the defendant’s

trial. In addition, the prosecution produced evidence

regarding two of the convictions during the course

of trial. 7d. at 111-112. However, because at least

two of the convictions were invalid,” the trial court

dismissed the recidivist charges and instructed the

jurors to disregard the evidence concerning the in-

valid convictions. Jd. at 118 & n.6. The jury there-

after convicted the defendant on the assault charge,

and the state courts affirmed.

This Court reversed, stating that “[t]o permit a

conviction obtained in violation of Gideon v. Wain-

wright to be used against a person either to support

guilt or enhance punishment for another offense * * *

is to erode the principle of that case.” 389 U.S. at

115. The Court found that the introduction of the

tainted convictions had prejudiced the defendant de-

“One of the convictions was obtained without the aid of

counsel and the other was void under state law. The recidivist

charge could not be sustained on the basis of the remaining

two felonies.

spite the trial court’s curative instruction. Jbid. Bur-

gett thus established that uncounselled convictions

could neither serve as the predicate for a recidivist

sentence nor be used as evidence of a defendant’s bad

character or propensity to commit the charged offense.

Burgett was followed in United States v. Tucker,

supra, in which the Court held that a convicted de-

fendant’s sentence could not be enhanced on the basis

of prior uncounselled convictions. 404 U.S. at 448-

449." The Court therefore remanded the case for a

determination “whether the sentence * * * might have

been different if the sentencing judge had known that

at least two of the respondent’s previous convictions

had been unconstitutionally obtained.” Id. at 448.®

Loper v. Beto, supra, involved use of uncounselled

convictions to impeach the credibility of a defendant

who had testified at trial. Mr. Justice Stewart’s plur-

ality opinion in Loper concluded that such impeach-

ment was barred by the decision in Burgett because

the prosecution had used the uncounselled convic-

41 Mr. Justice Blackmun, joined by the Chief Justice, dis-

sented on the grounds that Tucker would have received the

same sentence even if the sentencing judge had been unaware

of the prior convictions..Mr. Justice Powell and Mr. Justice

Rehnquist did not participate.

42 The Court did not forbid the sentencing judge from con-

sidering the facts underlying the invalid conviction, and the

courts of appeals have concluded that the district court may

do so. See, e.g., United States v. Bowdach, 561 F.2d 1160,

1175-1176 (5th Cir. 1977); Drayton v. New York, 556 F.2d

644, 646-647 (2d Cir.), cert. denied, 434 U.S. 958 (1977);

United States v. Haygood, 502 F.2d 166, 171-172 n.16 (7th

Cir. 1974). ,

tions “to support guilt.” 405 U.S. at 482 (quoting

from Burgett, supra, 389 U.S. at 115).* Mr. Justice

Stewart indicated, however, that an uncounselled con-

viction could be “used for the purpose of directly re-

butting a specific false statement made from the wit-

ness stand.” 405 U.S. at 482 n.11. Thus, the Court

recognized that an uncounselled conviction is not void

for all purposes and that, for example, a felon could

not lie about the fact of his prior conviction even if

that conviction were subsequently shown to have been

obtained in violation of the Sixth Amendment.

2. Use of an uncounselled felony conviction as the

basis for imposing a civil firearms disability, en-

forcible by criminal sanctions, is not inconsistent

with the Burgett line of cases. In each of those

cases this Court found that the conviction or sen-

tence in question violated the Sixth Amendment be-

cause it depended upon the reliability of a particu-

lar uncounselled conviction in the past. The federal

gun laws, however, focus on the mere fact of con-

viction, regardless of its reliability, in order to keep

firearms away from potentially dangerous people.

Criminal liability arises only when a convicted person

deliberately ignores the fact of his prior conviction,

either by lying about its existence (18 U.S.C. 922(a)

(6)) or by receiving, transporting, or possessing a

48 Mr. Justice White concurred, stating that he would re-

mand for consideration of harmless error. 405 U.S. at 485.

The Chief Justice, Mr. Justice Powell, Mr. Justice Blackmun,

and Mr. Justice Rehnquist dissented in three different

opinions.

firearm (18 U.S.C. 922(g) (1), 922(h) (1), and App.

1202(a)(1)) prior to obtaining judicial, executive,

or administrative relief in accordance with the

Omnibus Act. The plurality decision in Loper seem-

ingly makes clear that such a limited use of the his-

torical fact of an uncounselled conviction does not

deprive a defendant of his Sixth Amendment rights.

405 U.S. at 482 n.11.

For example, it could not seriously be contended

that the Sixth Amendment would afford a defense to

an escape charge if the prisoner’s outstanding con-

viction were invalid under Gideon. See, e.g., United

States v. Cluck, 542 F.2d 728, 732 (8th Cir.), cert.

denied, 429 U.S. 986 (1976) ; United States v. Smith,

534 F.2d 74 (5th Cir. 1976), cert denied, 429 U.S.

1100 (1977); United States v. Allen, 482 F.2d 939

(10th Cir. 1970); United States v. Haley, 417 F.2d

625 (4th Cir. 1969) ; Lucas v. United States, 325 F.2d

867, 867-868 n.2 (9th Cir. 1963). Yet the logic of peti-

tioner’s contention would permit such a defense, since

the historical fact of conviction would be used to “sup-

port guilt” in that case in just the same fashion that

it was used here. It is apparent, however, that Con-

gress may constitutionally rely on the fact of an un-

counselled conviction for at least some purposes, par-

ticularly where, as here, the immediate collateral

consequence of the conviction is simply the imposition

of a civil disability. See Mays v. Harris, 523 F.2d

1258, 1260 (4th Cir. 1975).

Burgett and its progeny are distinguishable for

still another reason. In those cases, the government

first attempted to use the prior uncounselled convic-

tion at the time of the subsequent trial. The Court

therefore allowed the defendant to challenge the valid-

ity of his prior conviction at that time—there being

no prior occasion when it would have been relevant

for him to have done so. On the other hand, Sections

1202(a), 922(g)(1), and 922(h) (1) impose an im-

mediate firearm disability upon the occurrence of the

felony conviction. It is therefore appropriate to re-

quire the convicted person who wishes to possess a

firearm to resort to the remedies provided by law to

challenge the validiiy st his prior conviction (either

App. 1203(2)) before abtaining a firearm—that is,

at the time the adverse consequence attaches. See

Note, Prior Convictions And The Gun Control Act of

1968, 76 Colum. L. Rev. 326, 338-339 (1976). Ac-

cordingly, the Sixth Amendment does not bar imposi-

tion of a criminal penaity upon a convicted felon who

fails to adhere to the regulatory procedures estab-

lished by the Omnibus Act, even if his prior convic-

tion proves to be invalid under Gideon. See Note,

supra, 76 Colum. L. Rev. at 339; cf. Walker v. City

of Birmingham, 388 U.S. 307 (1967).

44In Walker, the Court concluded that civil rights demon-

strators who violated a previously issued, but unlawful in-

junctive order based on an unconstitutional statute were

nonetheless properly held in contempt. The Court observed

that the demonstrators were not simply free to judge their

own case and to disregard the order, but rather should have

“appl[ied] to the * * * courts to have the injunction modified

or dissolved.” 388 U.S. at 317, 320-321. So too here, petitioner

was not free to judge his own case, but shcu!d have applied to

the courts to have his conviction set aside or pursued his

remedies under the Omnibus Act.

A comparison of the circumstances of an unconsti-

tutionally convicted felon with those of an indictee

who is subsequently acquitted illustrates the com-

pelling logic of our position. As we have already

indicated, an indictment represents only the grand

jury’s ex parte determination that there is probable

cause to believe that the accused has committed a

crime. See note 36, supra. Thus, a person may con-

stitutionally be indicted without the aid of counsel,

and if an indictee receives a firearm while under

indictment he may constitutionally be prosecuted for

violating Section 922(h) (1), even if he is thereafter

found not guilty. See page 26, supra. Petitioner

nonetheless insists that the unconstitutionally con-

victed felon may not e prosecuted under Section

922(h)(1) even though he has been both indicted

and found guilty beyond a reasonable doubt by the

trier of fact. We submit that the Sixth Amendment

does not mandate such an irrational result.“

45 Similarly instructive comparisons can be made between

an unconstitutionally convicted felon and an illegal alien or a

dishonorable dischargee, neither of whom is entitled to ap-

pointed counsel. See note 36, supra.

46 Although petitioner does not make the argument, it might

be contended that the imposition of a firearm disability

flowing from the fact of conviction is a punishment in viola-

tion of the Sixth Amendment where the conviction is in-

valid under Gideon. The disability imposed is civil in nature,

however, and many civil or even quasi-criminal disabilities

may be imposed without the right tv counsel. See, e.g., Baxter

v. Palmigiano, 425 U.S. 308, 314-315 (1976); cf. Bell v.

Wolfish, supra. In any event, just last Term the Court con-

cluded that an uncounselled conviction may serve as the basis

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

WabnE H. McCREE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ANDREW J. LEVANDER

Assistant to the Solicitor General

JEROME M. FEIT

JOEL M. GERSHOWITZ

Attorneys

NOVEMBER 1979

for imposition of a criminal fine. Scott v. Illinois, supra.

Thus, even if the firearm disability could fairly be described

as punishment, the temporary and limited nature of that

punishment for a person whose conviction is actually invalid

under Gideon is less onerous than the fine upheld in Scott.

= c. &. covaenmanr painrine orice; 1979 304019 107

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